M (A Child), Re

Applications for a care order and an order freeing a child for adoption are separate. The care application is primary and must be determined first, including the threshold and where the child should live. Only if a care order is made may the court address dispensation with parental consent.

On an adjournment application, the court should consider the delay, its likely effect on the child, the reason for postponement, and what difference further admissible evidence may make. A care plan does not bind the court. Parental consent may be dispensed with where refusal falls outside the objectively assessed band of reasonable responses, even where the parent is blameless and unable to care because of mental illness.

A local authority sought a care order and freeing order for an 18-month-old child who had lived with prospective adopters since he was 17 days old. The father opposed adoption and, after paternal cousins offered to be assessed as kinship carers, sought an adjournment for assessments and psychological evidence.

The Coventry County Court granted the adjournment after considering the care and adoption applications together. The child’s guardian appealed, arguing that the judge had allowed the adoption issue to determine the care question. The central issues were the correct sequence of decision-making, the relevance of delay and attachment evidence, and whether the father’s consent could be dispensed with.

Appeal allowed. Lord Justice Ward held that applications for a care order and a freeing order are separate and distinct. The care application is primary. The court must first determine whether the statutory threshold is crossed, what order best serves the child’s welfare, and where the child should live. Only if a care order is made can the court consider freeing for adoption and the question whether parental agreement should be dispensed with. This approach was consistent with Re O (Adoption: Withholding Agreement) [1999] 1 F.L.R. 451 at 470 and Re D (Simultaneous Applications for Care Order and Freeing Order) [1999] 2 F.L.R. 49 at 53.

1. Adjournment. The relevant considerations included the length of delay, its likely effect on the child, the reason for postponement, and the difference further admissible evidence might make. The judge had allowed the adoption issue to dominate what was essentially a care question. That was an error of principle which tainted the discretionary decision.
2. Care plan. A care plan is not binding on the court. The court may approve it, reject part of it, or express disapproval and invite reconsideration. It cannot impose its preferred plan on the local authority, and it may still make a care order where no viable alternative exists.
3. Article 8. Family intervention must be proportionate. The wider family should not be excluded unless the child’s welfare requires a final decision. Here, however, the child’s secure attachment to the prospective adopters, the limited prospect that assessment of the cousins would alter the outcome, and the father’s inability to provide a home justified refusing the adjournment and proceeding with care arrangements.
4. Consent to adoption. Applying the objective band of reasonable responses and current societal values, the advantages of adoption were overwhelmingly strong. The father’s lack of blame and inability to care because of mental illness did not make his refusal reasonable. His consent was therefore dispensed with.

The Court of Appeal exercised its own discretion to avoid further delay, committed the child to the local authority’s care, and ordered that he be free for adoption. Lord Justice Mantell and Lord Justice Carnwath agreed.

• Court of Appeal (Civil Division): Allowed the guardian’s appeal, exercised its own discretion, made a care order, and ordered that the child be free for adoption.
• Coventry County Court: On 26 September 2003, granted the father’s application to adjourn the care and freeing proceedings for further assessments and evidence.